Philip Morris: it's our First Amendment right to speech to sell tobacco in San Francisco pharmacies

Posted on October 6, 2008


The city council of San Francisco has issued an ordinance that pharmacies are not allowed to sell tobacco products. The intent is to eliminate mixed messages about a pharmacy, ostensibly devoted to healing people, selling unhealthy tobacco. But two companies are suing the city of San Francisco in federal court to overturn the ban. The first, Walgreens, is suing because only stand-alone pharmacies are affected by the ban – grocery stories and big-box stores with pharmacies are not affected. Their legal logic is that the tobacco sales ban is discriminatory toward stand-alone pharmacies, and they have a point. Whether it’ll hold up in court is another question (the federal judge refused to delay the ban, due to start on October 1, while the lawsuit is being heard), and one I’ll not even attempt to address.

The second company, Philip Morris, is suing using a totally different legal logic. They say it’s an unconstitutional abridgment of their First Amendment right to free speech.

In 2003, the Supreme Court dismissed Nike, Inc., et al, Petitioners v. Marc Kasky (with dissents on the dismissal by Justice Breyer and Justice Kennedy). According to the dismissal concurrence (linked above), the case essentially involved a private California citizen (Marc Kasky) suing Nike for unfair and deceptive practices under California’s Unfair Competition Law, specifically that “Nike made a number of ‘false statements and/or material omissions of fact’ concerning the working conditions under which Nike products are manufactured.” Nike’s response was that Kasky’s suit was unconstitutional since Nike had a First Amendment right (ostensibly guaranteed by its status as a juristic person) to say anything it wanted in its “commercial speech” (ie advertising). The Supreme Court initially granted, and then subsequently dismissed without deciding the constitutional questions, a hearing on this issue.

According to the San Francisco Chronicle article, Philip Morris is claiming that “‘…the purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights’, said Joe Murillo, a lawyer representing Philip Morris USA.” Understandably, the director of the city’s Department of Public Health, Mitch Katz, is not impressed:

“Do you remember any part of the Bill of Rights being about pharmacies selling tobacco?” he asked. “Philip Morris has fought every attempt by public health officials to save lives by curbing smoking … It’s a badge of honor for anyone in public health to be sued by Philip Morris”

It’s probably not a coincidence that Philip Morris is suing in California, the same state that brought the question of corporate personhood and First Amendment protections for commercial speech before the Supreme Court previously. California was one of the first states to adopt false advertising legislation (Sections 17500-17509 of California State Law), and California’s restrictions on both advertising and unfair competition are quite strict. In addition, California is the nation’s largest single market and as such it drives much of the nation’s regulations(which is why energy and automobile companies fight tooth and claw against California’s strict carbon emissions law, among others). A win in California would have a great deal of influence on regulations throughout the rest of the country, including at the federal level with the Federal Trade Commission’s Bureau of Consumer Protection – Advertising Practices Division.

For more on corporate personhood, please visit Reclaim Democracy.

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Money, speech, and corporate personhood
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